Appeal Number: DA/01101/2014

Upper Tribunal

(Immigration and Asylum Chamber)Appeal Number:DA/01101/2014

THE IMMIGRATION ACTS

Heard at UT(IAC)Birmingham / Decision and Reasons Promulgated
On8th September and 9th November 2015 / On 9th December 2015

Before

UPPER TRIBUNAL JUDGE COKER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

And

FM

Respondent

Representation:

For the Appellant:Mr I Richards (on 8th September) and Mr D Mills (on 9th November) Senior Home Office Presenting Officer

For the Respondent:Mr A Pipe, instructed by TRP solicitors

DECISION AND REASONS

I make an order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 prohibiting the disclosure or publication of anything that might lead members of the public to identify the parties identified in this decision as FM (Mr M), Ms A or S.Any failure to comply with this direction could give rise to contempt of court proceedings.

  1. The respondent made a decision that s32 (5) UK Borders Act 2007 applied to Mr M following his conviction for numerous offences for which he received lengthy prison sentences. A deportation order was signed on 29th May 2014. Mr M appealed the decision and by a decision promulgated on 18th June 2014 a panel of the First-tier Tribunal allowed the appeal on the basis that the removal of Mr M would be a breach of his human rights.
  2. The Secretary of State for the Home Department (hereafter the SSHD) sought and was granted permission to appeal the decision of the First-tier Tribunal. Following a hearing on 8th September 2015 I found,for the reasons that follow, that the First-tier Tribunal had made an error of law such as to require that its decision be set asideso that the Upper Tribunal would substitute a fresh decision to allow or to dismiss the appeal against the deportation decision.

Background

  1. Mr M, a Jamaican citizen, arrived in the UK on 20th July 2001; he claimed asylum on 14th March 2002 such claim being refused on 5th June 2002. He did not appeal the immigration decision that accompanied the refusal of his asylum claim at that time and remained in the UK unlawfully. He submitted an out of time appeal against that decision which was refused on 6th May 2005 although whether it was rejected as being out of time or refused on its merits is not made clear in the papers before me. In the meantime he had been arrested for motoring offences and detained under Immigration powers.
  2. On 22nd November 2004 he applied for leave to remain as the spouse of a person present and settled in the UK, outside the Rules, such application being refused with no right of appeal on 2nd February 2006. He then voluntarily left the UK on 14th February 2006.
  3. An application for entry clearance as a spouse was made on 7th April 2006 and refused on 11th May 2006. His appeal was successful in a decision dated 11th June 2007 and on 25th September 2007 he was granted entry clearance until 25th September 2009, arriving in the UK on 20th October 2007.
  4. An application for indefinite leave to remain as a spouse of Ms A, a British citizen, was made on 18th November 2009. According to the reasons set out in the decision which led to the instant appeal, that application (which was made when Mr M had no leave to remain in the UK) remains outstanding. It was not submitted to me that the decision was subsumed within the deportation decision and so far as I am aware no decision has yet been made on that application.
  5. On 20th September 2010 Mr M was convicted of (and sentenced to):
  6. Conspiracy to commit robbery (9 years imprisonment)
  7. Having a firearm with intent to commit an indictable offence (5 years imprisonment to run concurrent)
  8. Having an imitation firearm with intent to commit indictable offence (30 months imprisonment to run concurrent)
  9. Possessing prohibited weapon (54 months imprisonment to run concurrent)
  10. Possessing a firearm without a certificate(54 months imprisonment to run concurrent)
  11. Possessing ammunition without a certificate (33 months imprisonment to run concurrent)
  12. S117D(2) Nationality, Immigration and Asylum Act 2002 defines a foreign criminal as, inter alia, a person who is not a British citizen who has been convicted of an offence and sentenced to a period of imprisonment of at least 12 months. S117D(4)(b) further states that reference to a person who has been sentenced to a period of imprisonment “does not include a person who has been sentenced to a period of imprisonment of that length of time only by virtue of being sentenced to consecutive sentences amounting in aggregate to that length of time”. Plainly this appellant is a foreign criminal who has been sentenced to a period of imprisonment of at least 12 months (and more than 4 years– see s117C (6)). Mr M had been detained since September 2009; in April 2014 Mr M was released from custody on bail and he, his wife (Ms A) and their son S (date of birth 11th September 2002) lived as a family unit since then.
  13. The SSHD accepts that it is not in the best interests of the child or Ms A to live in Jamaica; the child S has been diagnosed with Autism Spectrum Disorder; Ms A runs a successful nursery business; the couple were expecting a second child (which has now been born although it was not argued before the First-tier Tribunal that that child had any rights as an ‘unborn child’).

The law

  1. The Immigration Rules, in so far as relevant to Mr M, are as follows:

‘396.Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007.

397.A deportation order will not be made if the person's removal pursuant to the order would be contrary to the UK's obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations, it will only be in exceptional circumstances that the public interest in deportation is outweighed.

A398.These rules apply where:

(a)a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention;

(b)a foreign criminal applies for a deportation order made against him to be revoked.

398.Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and

(a)the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b)the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c)the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

399.This paragraph applies where paragraph 398 (b) or (c) applies if –

(a)the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i)the child is a British Citizen; or

(ii)the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision;

and in either case

(a)it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(b)it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or

(b)the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

(i)the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

(ii)it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

(iii)it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.

399A.This paragraph applies where paragraph 398(b) or (c) applies if –

(a)the person has been lawfully resident in the UK for most of his life; and

(b)he is socially and culturally integrated in the UK; and (c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.’

  1. The Nationality, Immigration and Asylum Act 2002 (as amended by the Immigration Act 2014)in so far as relevant to Mr M reads as follows:

‘PART 5A

Article 8 of the ECHR: public interest considerations

117AApplication of this Part

(1)This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts—

(a)breaches a person’s right to respect for private and family life under Article 8, and

(b)as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2)In considering the public interest question, the court or tribunal must (in particular) have regard—

(a)in all cases, to the considerations listed in section 117B, and

(b)in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

(3)In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).

117BArticle 8: public interest considerations applicable in all cases

(1)The maintenance of effective immigration controls is in the public interest.

(2)It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—

(a)are less of a burden on taxpayers, and

(b)are better able to integrate into society.

(3)It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—

(a)are not a burden on taxpayers, and

(b)are better able to integrate into society.

(4)Little weight should be given to—

(a)a private life, or

(b)a relationship formed with a qualifying partner,

that is established by a person at a time when the person is in the United Kingdom unlawfully.

(5)Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious.

(6)In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where—

(a)the person has a genuine and subsisting parental relationship with a qualifying child, and

(b)it would not be reasonable to expect the child to leave the United Kingdom.

117CArticle 8: additional considerations in cases involving foreign criminals

(1)The deportation of foreign criminals is in the public interest.

(2)The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3)In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.

(4)Exception 1 applies where—

(a)C has been lawfully resident in the United Kingdom for most of C’s life,

(b)C is socially and culturally integrated in the United Kingdom, and

(c)there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.

(5)Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.

(6)In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.’

  1. S55 Borders, Citizenship and Immigration Act 2009 reads as follows:

‘Duty regarding the welfare of children

(1)The Secretary of State must make arrangements for ensuring that -

(a)the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b)any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.

(2)The functions referred to in subsection (1) are -

(a)any function of the Secretary of State in relation to immigration, asylum or nationality;

(b)any function conferred by or by virtue of the Immigration Acts on an immigration officer;

…’

  1. S71 of the Immigration Act 2014 states

‘For the avoidance of doubt, this Act does not limit any duty imposed on the Secretary of State or any other person by section 55 of the Borders, Citizenship and Immigration Act 2009 (duty regarding the welfare of children).’

  1. It is plain that the implementation of the Immigration Act 2014 has not limited or changed the manner of assessment of the best interest of children; nor has it shifted the importance to be given to those interests or the children’s welfare.
  2. These are the reasons, arrived at and communicated to the parties following the hearing on 8th September 2015, why the First-tier Tribunal made an error of law:

“1.There is no question but that Mr M is a foreign criminal and that he has a genuine and subsisting relationship with a qualifying partner and a genuine and subsisting parental relationship with a qualifying child. Although his relationship with Ms A was formed at a time when he was unlawfully in the UK it is clear that the respondent and the First-tier Tribunal (correctly) placed no weight upon that given in particular that he had left the UK, applied for and been granted entry clearance to return as a spouse and thereafter his residence in the UK was lawful. It was accepted by the respondent before the First-tier Tribunal that it was in S’s best interests to remain in the UK and that he and Ms A would remain in the UK if Mr M were deported; this was a ‘family splitting’ case.

2.The SSHD in her grounds of appeal relies upon her IDIs, Chapter 13 and refers to:

6.4A foreign criminal sentenced to at least four years imprisonment must be able to show that there are very compelling circumstances over and above the circumstances described in the exceptions to deportation. This is because Parliament has expressly excluded those sentenced to at least four years imprisonment from the exceptions to deportation. Missing out on the exceptions by a small margin, or a series of near misses taken cumulatively, will not in itself be compelling enough to outweigh the public interest in deportation. The best interest of any child in the UK who will be affected by the decision are a but not the primary consideration and must be not only compelling, but very compelling, to outweigh the public interest.

3.She relies upon Danso [2015] EWCA Civ 596 in particular that rehabilitation “cannot …contribute greatly to the existence of the very compelling circumstances required to outweigh the public interest in deportation” [20] Danso. In submissions Mr Richards referred to MAB (para 399; “unduly harsh”) USA [2015] UKUT 435 (IAC) and submitted that the decision of the First-tier Tribunal fell far short of providing adequate reasons for reaching the conclusion that in the particular circumstances of the case, there were very compelling circumstances such that Mr M met paragraph 398 of the Immigration Rules and that this removal would be a disproportionate interference with his Article 8 rights.

4.Mr Pipe submitted that the structure of the First-tier Tribunal decision, when read as a whole and cumulatively clearly identified and gave adequate reasons for the conclusions reached. He referred to the self directions given by the panel – (paragraphs [5]. [12], [13], [14], [15] and [17]) - and drew attention to the different elements of the First-tier Tribunal decision which, he submitted, had been cumulatively assessed:

  • risk of re-offending was very low ([17], [21], [22]);
  • in this particular case rehabilitation is an important factor ([23]);
  • the impact of Mr M’s deportation on S would be very significant and damaging; would have a significant detrimental effect on S’s well being both in the short and long term ([24]; [32]);
  • Ms A and the child would highly probably not move to Jamaica([33]);
  • S cannot be expected to move to Jamaica to live with his father there ([33]);
  • S’s best interest are a primary consideration; it is highly important for S’s welfare that Mr M remains in the UK ([34]);
  • Ms A has a business and her parents in the UK; if Mr M is deported she will have to look after two children and her business([35]);
  • There is strong public interest in his deportation tempered by the factors in relation to his rehabilitation ([36]).

5.Mr Pipe argued that the references in [35] to factors not amounting to compelling circumstances did not refer to the family circumstances overall but merely to the particular elements set out in that paragraph namely, in essence, the additional difficulties Ms A would have in running her business, providing care for the children and the lack of availability of assistance from Mr M. He argued that [36] should not be seen in isolation from the rest of the determination and the reference to rehabilitation should not be seen as the issue that amounted to ‘very compelling circumstances’.

6.In [34] the reference by the First-tier Tribunal to the interest of S being a primary consideration is of course correct. The First-tier Tribunal then held that “it is highly important for S’s welfare that his father remains in the UK”. This does not equate with ‘very compelling circumstances’. There has been no assessment by the First-tier Tribunal of whether the deportation of Mr M from the UK would be unduly harsh on the child, even if it is highly important for Mr M to remain in the UK for the welfare of S. The First-tier Tribunal has simply not applied the correct test to the information before them.